Davis v. State
| Decision Date | 14 November 1921 |
| Docket Number | 242 |
| Citation | 234 S.W. 482,150 Ark. 500 |
| Parties | DAVIS v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Sevier Circuit Court; James S. Steel, Judge; affirmed.
Judgment affirmed.
Lake & Lake, for appellant.
J. S Utley, Attorney General, Elbert Godwin and W. T. Hammock Assistants, for appellee.
Instruction 1 given by the court, correctly declared the law. C. & M Dig. § 2720. Its instructions 2, on the credibility of witnesses, and 3, relative to the credibility of the appellant as a witness, were correct. This court will not reverse because the credibility of the defendant is made the subject of a separate instruction.
There was no proof on which to base instruction 5 requested by appellant. It was not error to refuse it. 21 Ark. 69; 23 Id. 731; 217 S.W. 779.
Instructions should not be based on rejected testimony. 14 Ark. 286; 21 Id. 370; 23 Id. 101. The reputation for chastity of the female is not involved in a prosecution for carnal abuse. 15 Ark. 624; 72 Id. 409; 103 Id. 119.
Evidence of specific acts of immorality of the prosecuting witness was not competent; it was in no sense a defense against the charge. 72 Ark. 409; 15 Id. 624; 84 Id. 16; 103 Id. 119.
There was no error in the argument. If so, it was invited. Moreover, appellant did not request its exclusion. 84 Ark. 128. Prosecuting attorneys have the right to appeal to the jury to do its duty. 106 Ark. 131.
Appellant was indicted, tried and convicted in the Sevier Circuit Court for the crime of carnal abuse, and as punishment therefor sentenced to serve a period of two years in the State penitentiary. From the judgment of conviction an appeal has been duly prosecuted to this court.
According to the evidence adduced in behalf of the State, appellant had sexual intercourse with Nina Olmstead, a female under the age of sixteen years, on the night of the 26th day of April, 1920, in his home where she was employed to wait upon appellant's wife during her illness occasioned by childbirth.
In the course of the trial the court refused to permit appellant to show by other witnesses specific acts of immorality of the prosecuting witness, Nina Olmstead, with other men, because the State had not put the chastity of the prosecutrix in issue, to which ruling of the court an exception was saved. Bearing upon this particular question, appellant requested instruction No. 5, which was refused by the court, to which ruling appellant also saved an exception. Appellant's requested instruction No. 5 is as follows:
"While it would be no defense which would justify or excuse the defendant if other men had been criminally intimate with the prosecuting witness, this fact, if you should find it to be a fact, should be considered as it might tend to discredit or impeach the testimony of the prosecuting witness and render her unworthy of belief."
The court also ruled that, if appellant interrogated the prosecuting witness in reference to specific acts of intercourse with other men upon cross-examination for the purpose of discrediting her, he would be bound by her answers, to which ruling an exception was saved. The court gave a number of instructions to which general objections were made and exceptions saved by appellant.
The refusal of the trial court to permit appellant to show by other witnesses specific acts of immorality of the prosecuting witness was correct. Her chastity was not involved in the charge, and such proof would not have been responsive to the issue. Pleasant v. State, 15 Ark. 624; Plunkett v. State, 72 Ark. 409, 82 S.W. 845; Renfroe v. State, 84 Ark. 16, 104 S.W. 542; Peters v. State, 103 Ark. 119, 146 S.W. 491.
It is not admissible as affecting the credibility of the prosecuting witness because it related to matters collateral to the issue. McAlister v. State, 99 Ark. 604, 139 S.W. 684.
The holding of the trial court to the effect that appellant would be bound by the answers of the prosecuting witness on cross-examination with reference to specific acts of intercourse with other men was correct. The questions and answers related to collateral matters. This court held in the case of McAlister v. State, supra (quoting syllabus): "While it is proper to permit a witness to be asked as to specific acts affecting his credibility, yet, if such matters are collateral to the issue, he cannot, as to his answer, be subsequently contradicted by the party putting the question." The refusal of the court to give appellant's requested instruction No. 5 did not constitute reversible error because it was abstract. There was no evidence in the record upon which to base the instruction.
During the progress of the trial, the prosecuting attorney, over the objection and exception of the appellant, was permitted to say: "I remember Judge Lake, in Howard County, stating there that a girl...
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Hill v. State
...that enforce the law and if the people know the law is not enforced, the law is going to be violated' was not improper. Davis v. State, 150 Ark. 500, 234 S.W. 482. The statement, 'Gentlemen, when you return a verdict of less than murder in the first degree in this case, you throw down the l......
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